EXHIBIT 99.1
SUBSCRIPTION AGENCY AGREEMENT
This Subscription Agency agreement (the "Agreement") is made and
entered into this day of , 1997, by and between Laboratory
Corporation of America Holdings, a corporation organized under the laws of
Delaware (the "Company"), and American Stock Transfer & Trust Company, a New
York corporation with offices at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Subscription Agent").
WITNESSETH:
WHEREAS, the Company is filing a Registration Statement with the
Securities and Exchange Commission on Form S-3 (the "Registration Statement")
with respect to the proposed offering (the "Rights Offering") of up to an
aggregate of 10,000,000 shares of % Series A Convertible
Exchangeable Preferred Stock, par value $0.10 per share, of the Company (the
"Series A Exchangeable Preferred Stock") and % Series B Convertible
Pay-in-Kind Preferred Stock, par value $0.10 per share, of the Company (the
"Series B PIK Preferred Stock" and together with the Series A Exchangeable
Preferred Stock, the "Preferred Stock"), pursuant to transferable subscription
rights (the "Rights") to be issued to holders of record (the "Recordholders")
of the Company's outstanding common stock, par value $0.01 per share (the
"Common Stock"); and
WHEREAS, the Subscription Agent presently serves as Transfer
Agent (the "Transfer Agent") and Registrar (the "Registrar") of the Common
Stock and will serve as Transfer Agent and Registrar for the Rights and the
Preferred Stock; and
WHEREAS, it is expected by the Company that of a Right
will be issued for each share of Common Stock held of record as of the date
set forth in the Registration Statement as the record date (the "Record
Date"), that one Right will entitle the holder (the "Rights Holder") to
purchase one (1) share of either Series A Exchangeable Preferred Stock or
Series B PIK Preferred Stock (the "Basic Subscription Privilege") at $50 per
share (the "Subscription Price"), that Rights Holders who exercise their Basic
Subscription Privilege in full will be eligible to subscribe at the
Subscription Price for shares (the "Excess Shares") of Preferred Stock of the
same series subscribed for pursuant to the Basic Subscription Privilege which
are not otherwise purchased pursuant to the Basic Subscription Privilege (the
"Oversubscription Privilege") and that the Rights will be evidenced by
transferable certificates (the "Rights Certificates") in a form satisfactory
to the Subscription Agent and the Company; and
WHEREAS, the Company desires to employ the Subscription Agent to
issue and deliver the Rights Certificates and to act as Subscription Agent in
connection with the Rights Offering, and the Subscription Agent is willing to
act in such capacity;
NOW, THEREFORE, the parties hereto agree, in consideration of
the mutual covenants and promises herein contained, as follows:
1. Appointment of Subscription Agent. The Rights
Offering will be conducted in the manner and upon the terms set forth in the
final Prospectus constituting a part of the Registration Statement (the
"Prospectus"), which is incorporated herein by reference and made a part
hereof as if set forth in full herein. The Subscription Agent is hereby
appointed as subscription agent to effect the Rights Offering in accordance
with the Prospectus, and the Subscription Agent hereby accepts such
appointment. Each reference to the Subscription Agent in this Agreement is to
the Subscription Agent in its capacity as subscription agent unless the
context indicates otherwise.
2. Delivery of Documents By Company.
(a) The Company will cause to be timely delivered to the
Subscription Agent sufficient copies of the following
documents for delivery to Recordholders;
(i) the Prospectus;
(ii) blank transferable Rights Certificate;
(iii) instructions for use and exercise of the Rights
Certificates;
(iv) transmittal letter;
(v) transmittal letter for Recordholders outside of
the United States and Canada or who have an APO or
FPO address;
(vi) separate transmittal letter for Recordholders who
are nominees;
(vii) separate transmittal letter to be sent to
beneficial holders; and
(viii) notice of guaranteed delivery for Rights
Certificates.
(b) The Company will also deliver to the Subscription
Agent resolutions adopted by the Board of Directors of the
Company in connection with the Rights Offering, certified by
the Secretary of the Company.
3. Determination of Recordholders and Rights. The Company
will issue of a Right to each Recordholder for each share of Common Stock
held by the Recordholder on the Record Date. No fractional Rights or cash
in lieu thereof will be issued or paid. Instead, the number of Rights
issued to a Recordholder will be rounded to the nearest whole number, with
such adjustments as may be necessary to ensure that no more than 10,000,000
shares of Preferred Stock are issued.
On or about the Record Date, the Subscription Agent shall
create and maintain from the stock ledger and register it maintains in its
capacities as Transfer Agent and Registrar of the Common Stock a record of the
names, addresses and, where available, taxpayer identification numbers of the
Recordholders and the number of Rights each such Recordholder is entitled to
receive in the Rights Offering (the "Rights Record"). The Rights Record shall
also include the number of the Rights Certificate, the number of Rights
evidenced on the face of the Rights Certificate and the date of the Rights
Certificate issued to each Recordholder. The Recordholders shall be
established as of the close of business on the Record Date.
4. Mailing of Documents by Subscription Agent.
As soon as practicable after delivery of the documents described in
subparagraph 2(a) hereof and receipt of written instructions from the Company,
the Subscription Agent shall mail or cause to be mailed, via first class mail,
to each Recordholder within the United States and Canada who does not have an
APO or FPO address, a transmittal letter, a Rights Certificate dated as of the
date of issuance thereof by the Subscription Agent evidencing the Rights to
which such Recordholder is entitled, a Prospectus, the instructions for use
and exercise of the Rights Certificates, the Notice of Guaranteed Delivery (as
herein defined) for the Rights Certificates and an envelope addressed to the
Subscription Agent. The Subscription Agent shall mail or cause to be mailed
via airmail or courier to Recordholders whose addresses are outside the United
States and Canada or who have an APO or FPO address a transmittal letter from
the Company addressed to such Recordholders and a Prospectus. The
Subscription Agent shall make reasonable effects to identify which of the
Recordholders are likely to be nominee holders and to include a separate
transmittal letter for Recordholders who are nominees with such
Recordholders' mailing. The Subscription and Information Agent shall make
copies of a separate transmittal letter addressed to beneficial holders
available upon request. Prior to mailing, the Subscription Agent, as
Transfer Agent and Registrar for the Rights, will cause to be issued Rights
Certificates in the names of the Recordholders and for the number of Rights
to which they are each entitled, as determined in accordance with paragraph
3 above. The Subscription Agent shall either manually sign or affix a duly
authorized facsimile signature on all Rights Certificates. Promptly after
the Rights Certificates are mailed, the Subscription Agent shall execute
and deliver to the Company a certificate in the form of Exhibit A hereto.
Subsequent to their original issuance, no Rights Certificates shall be
issued except Rights Certificates issued upon any transfer, combination,
split up or exchange of Rights, issued in replacement of mutilated,
destroyed, lost or stolen Rights Certificates or otherwise issued pursuant
to paragraph 6 hereof.
5. Subscription Procedure; Payment for Preferred
Stock and Delivery of Preferred Stock.
(a) For a valid exercise of Rights to occur, the
Subscription Agent must receive, by first class mail,
express mail, overnight courier or hand delivery, prior to
5:00 P.M., New York time, on the Expiration Date (as defined
in the Prospectus), the properly completed and executed
Rights Certificate(s) evidencing those Rights, with any
signatures guaranteed as required, or by first class mail,
express mail, overnight courier, hand delivery, telegram or
facsimile prior to 5:00 P.M., New York time, on the
Expiration Date, a properly completed and executed Notice of
Guaranteed Delivery (as set forth in paragraph 7), in each
case, together with payment in full of the Subscription
Price for each share subscribed for pursuant to the Basic
Subscription Privilege and the Oversubscription Privilege.
Payment may be made only (i) by check or bank draft drawn
upon a U.S. bank, or postal, telegraphic or express money
order, payable to the Subscription Agent; or (ii) by wire
transfer of funds to the escrow account maintained by the
Subscription Agent for the purpose of accepting
subscriptions (the "Subscription Account"). The
Subscription Price will be deemed to have been received by
the Subscription Agent only upon (i) clearance of any
uncertified check; (ii) receipt by the Subscription Agent
of any certified check or bank draft drawn upon a U.S. bank
or any postal, telegraphic or express money order; or (iii)
receipt of collected funds in the Subscription Account. In
the case of Rights that are held of record through the
Depository Trust Company ("DTC"), exercises of the
Subscription Privilege may be effected by instructing DTC to
transfer Rights from the DTC account of such holder to the
DTC account of the Subscription Agent, together with
certification as to the aggregate number of Rights exercised
and the number of shares of Preferred Stock thereby
subscribed for pursuant to the Basic Subscription Privilege
and the Oversubscription Privilege by each beneficial owner
of Rights on whose behalf such nominee Recordholder is
acting, and payment of the Subscription Price for each share
of Preferred Stock subscribed for pursuant to the
Subscription Privilege.
(b) Three days following the Expiration Date, the
Subscription Agent shall pay to the Company, by wire
transfer, certified or bank check or other method acceptable
to the Company, the amount of all funds received by the
Subscription Agent in payment of the Subscription Price for
the Preferred Stock subscribed for pursuant to the Basic
Subscription Privilege and the Oversubscription Privilege.
(c) Three (3) calendar days after the Expiration Date
the Company shall issue written instructions to mail the
Preferred Stock subscribed for pursuant to the Rights, and
the Subscription Agent shall as soon as practicable mail
certificates representing the Series A Exchangeable
Preferred Stock or Series B PIK Preferred Stock (together,
the "Preferred Certificates") properly subscribed for by the
Rights Holder, registered in the name of the Rights Holder
exercising such Rights. The Preferred Certificates shall be
mailed via first class mail to the subscribers' addresses as
shown on the reverse side of the Rights Certificates or, if
none, then as listed on the Subscription Agent's register,
except that the Subscription Agent shall comply with any
ancillary written delivery instructions provided by any
Rights Holder. The Subscription Agent shall maintain a
blanket surety bond protecting the Company and the
Subscription Agent from loss or liability arising out of
non-receipt or non-delivery of such Preferred Certificates.
(d) Fractional shares shall not be issued or subscribed
for. One Right may be exercised to purchase one share of
Preferred Stock at the Subscription Price. A Rights
Certificate may not be divided in such a manner as would
permit the Rights Holders to subscribe for a greater number
of shares of Preferred Stock than the number for which they
would be entitled to subscribe under the original Rights
Certificate.
(e) To the extent that any Rights Certificates remain
unexercised outstanding, or not transferred to the
Subscription Agent's account at DTC at 5:01 P.M., New York
time, on the Expiration Date (other than those subject to
paragraph 7 hereof), subject to the extension set forth in
paragraph 5(f), such outstanding Rights Certificates shall
be null and void. The Company will not be obligated to
honor any purported exercise of Rights received by the
Subscription Agent or transfer of Rights to the Subscription
Agent's account at DTC after the Expiration Date, regardless
of when the documents relating to that exercise were sent,
except pursuant to the Guaranteed Delivery Procedures (as
herein defined).
(f) The Company may extend the Expiration Date for up to
an additional 30 days, in its sole discretion, by giving
oral or written notice to the Subscription Agent on or
before the Expiration Date, followed by a press release no
later than 9:00 a.m. New York time on the next business day
after the previously scheduled Expiration Date. The Rights
Offering will not be extended to a time later than 5:00
p.m., New York time, on , 1997.
(g) A Rights Holder who subscribes for fewer than all of
the shares represented by its Right Certificate(s) may,
under certain circumstances, receive from the Subscription
Agent a new Rights Certificate representing the remaining
Rights. The Subscription Agent will issue a new Rights
Certificate to a submitting Rights Holder upon the partial
exercise of Rights only if the Subscription Agent receives a
properly endorsed Rights Certificate no later than the
fourth business day prior to the Expiration Date. After
such time and date no new Rights Certificates will be
issued. Accordingly, after such time and date a Rights
Holder exercising less than all of its Rights will lose the
power to exercise its remaining Rights. The Subscription
Agent will send a new Rights Certificate by first class mail
to the submitting Rights Holder if the Subscription Agent
receives the properly completed Rights Certificate by 5:00
p.m. New York time, on _________, 1997. Unless the
submitting Rights Holder makes other arrangements with the
Subscription Agent, a new Rights Certificate issued by the
Subscription Agent after 5:00 p.m. New York time on
__________, 1997 will be held for pick-up by the submitting
Rights Holder at the principal office of the Subscription
Agent. All deliveries of newly issued Rights Certificates
will be at the risk of the Rights Holder.
6. Defective Exercise of Rights; Transfer, Etc. of Rights
Certificates; and Lost Rights Certificates.
(a) All questions concerning the timeliness, validity,
form and eligibility of any exercise of Rights will be
determined by the Company, whose determination will be final
and binding. The Company, in its sole discretion, may waive
any defect or irregularity, or permit a defect or
irregularity to be corrected within such time as it may
determine. Rights Certificates will not be deemed to have
been received or accepted until all irregularities have been
waived or cured within such time as the Company determines,
in its sole discretion. Neither the Subscription Agent nor
the Company will be under any duty to give notification of
any defect or irregularity in connection with the submission
of Rights Certificates or incur any liability for failure to
give such notification. If an exercise is not defective
except that the Rights Holder has failed to select the
series of Preferred Stock exercised, the Subscription Agent
shall issue Series A Exchangeable Preferred Stock. If an
exercise is not defective except that there is a partial
payment of the Subscription Price, the Subscription Agent
shall issue the number of shares of Preferred Stock for
which payment has been made. To the extent that the
aggregate payment delivered by a Rights Holder exceeds the
product of the Subscription Price multiplied by the number
of Rights evidenced by the Rights Certificates delivered by
a Rights Holder (such excess being the "Subscription
Excess"), the Rights Holder will be deemed to have exercised
the Oversubscription Privilege to purchase, to the extent
available, that number of whole shares equal to the quotient
obtained by dividing the Subscription Excess by the
Subscription Price. Any amount remaining after application
of the foregoing procedures will be returned by the
Subscription Agent to the Rights Holder promptly by mail
without interest or deduction. Any Rights Certificate with
respect to which defects in exercise are not corrected prior
to 5:00 P.M., New York time, on the Expiration Date, or
which are received after such time, shall be null and void.
(b) Subject to the provisions of subparagraph 5(d)
hereof, any Rights Certificate may be transferred, split up,
combined or exchanged for another Rights Certificate or
Rights Certificates. Any Rights Holder desiring to
transfer, split up, combine or exchange any Rights
Certificate(s) shall make such request, by properly
completing the assignment panel on the Rights Certificate(s)
and surrendering the Rights Certificate(s) to be
transferred, split up, combined or exchanged at least four
(4) business days prior to the Expiration Date at the
principal office of the Subscription Agent. Thereupon the
Subscription Agent shall date and deliver to the person
entitled thereto a Rights Certificate or Rights
Certificates, as the case may be, as so requested. Nothing
contained in this paragraph 6, paragraph 5 or elsewhere
herein shall permit a Rights Holder to split up or divide a
Right or to partially exercise a Right.
(c) Upon the receipt by the Subscription Agent and the
Company of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of a Rights
Certificate, and upon receipt of indemnity or security
reasonably satisfactory to them and reimbursement of all
expenses incidental thereto, and upon surrender and
cancellation of the Rights Certificate if mutilated, the
Company will make and deliver a new Rights Certificate of
like tenor to the Subscription Agent for delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated. The Subscription Agent may,
at the direction of the Company and with the consent of the
Rights Holder of the lost, stolen or destroyed Rights
Certificate, permit the exercise of the Rights evidenced by
such certificate without a replacement of such certificate;
provided that such lost, stolen or destroyed Rights
Certificate is not presented for exercise prior to the
Expiration Date.
(d) Except for the fees charged by the Subscription
Agent (which will be paid by the Company) and taxes
described in paragraph 16, all commissions, fees and other
expenses (including brokerage commissions and transfer
taxes) incurred in connection with the purchase, sale or
exercise of Rights will be for the account of the transferor
of the Rights, and none of such commissions, fees or
expenses will be paid by the Company or the Subscription
Agent.
7. Guaranteed Delivery. If a Rights Holder wishes to
exercise Rights, but time will not permit such Rights Holder to cause the
Rights Certificate(s) evidencing those Rights to reach the Subscription Agent
prior to the Expiration Date, such Rights may nevertheless be exercised if all
of the following conditions (the "Guaranteed Delivery Procedures") are met:
(i) the Rights Holder has caused payment in full of
the Subscription Price for each share being subscribed
for pursuant to the Basic Subscription Privilege and,
if applicable, the Oversubscription Privilege, to be
received (in the manner set forth above) by the
Subscription Agent at or prior to the Expiration Date;
(ii) the Subscription Agent receives, at or prior to
the Expiration Date, a guarantee notice (a "Notice of
Guaranteed Delivery"), guaranteed by a member firm of a
registered national securities exchange or a member of
the National Association of Securities Dealers, Inc.,
or from a commercial bank or trust company having an
office or correspondent in the United States, giving
the name of the exercising Rights Holder, the number of
shares being subscribed for pursuant to the Basic
Subscription Privilege and, if any, pursuant to the
Oversubscription Privilege, and guaranteeing the
delivery to the Subscription Agent of the Rights
Certificate(s) evidencing those Rights within two (2)
business days following the date of the Notice of
Guaranteed Delivery; and
(iii) the properly completed Rights Certificate(s)
evidencing the Rights being exercised, with any
signatures guaranteed as required, is received by the
Subscription Agent or such Rights are transferred into
the DTC account of the Subscription Agent within two
(2) business days following the date of the Notice of
Guaranteed Delivery relating thereto. The Notice of
Guaranteed Delivery may be delivered to the
Subscription Agent in the same manner as Rights
Certificates or may be delivered to the Subscription
Agent by telegram or facsimile. The Subscription Agent
shall make additional copies of the Notice of
Guaranteed Delivery available upon request.
8. Foreign Stockholders. Rights Certificates will not be
mailed to Recordholders whose addresses are outside the United States and
Canada or who have an APO or FPO address, but will be held by the
Subscription Agent for each Recordholder account. To exercise their
Rights, such persons must notify the Subscription Agent at or prior to 5:00
p.m., New York time, on , 1997. Such Recordholder's Rights will expire
at the Expiration Date. The Subscription Agent shall airmail or courier the
documents required by subparagraph 2(a) hereof to Recordholders whose
addresses are outside the United States or Canada or who have APO or AFO
addresses, or take other reasonable action to cause the timely delivery of
such documents to such Recordholders.
9. Proof of Authority to Sign. The Subscription Agent need
not procure supporting legal papers, and is authorized to dispense with
proof of authority to sign (including all proof of appointment or authority
to sign of any fiduciary, custodian for a minor, or other person acting in
a representative capacity), and to dispense with the signatures of co-
fiduciaries, in connection with exercise of Rights in the following cases:
(a) where the Rights Certificate is registered in the
name of an executor, administrator, trustee, custodian for a
minor or other fiduciary, and the Rights form thereof is
executed by such executor, administrator, trustee, custodian
for a minor or other fiduciary, and the Preferred Stock is
to be issued in the name of the Rights Holders, as
appropriate; and
(b) where the Rights Certificate is in the name of a
corporation, and the Rights form thereof is executed by an
officer of such corporation, and the Preferred Stock
subscribed for is to be issued in the name of such
corporation.
In all of the cases set forth in this paragraph 9 and
notwithstanding anything contained in this Agreement to the contrary, the
check tendered in payment of the Subscription Price must be drawn for the
proper amount, to the order of the Subscription Agent and otherwise be in
proper form, and there must be no evidence indicating that the subscriber is
not the duly authorized representative it purports to be. In cases other than
the above, the Subscription Agent should procure the necessary legal
documents. However, in the event that by the Expiration Date all legal
requirements have not been met, the Subscription Agent may accept approval
from the Chief Executive Officer or any Executive Vice President as to
whether such Rights Certificate may be accepted and the Preferred Stock
issued.
10. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, exchange,
substitution or transfer shall, upon surrender to the Subscription Agent be
canceled by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement.
The Subscription Agent (a) may deliver all canceled Rights Certificates to
the Company, and if delivered, the Company shall make available to the
Subscription Agent the canceled Rights Certificates for its inspection, or
(b) shall, at the written request of the Company, destroy such Rights
Certificates and in such case shall deliver a certificate of destruction
thereof to the Company.
11. Reservation and Availability of Preferred Stock. The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Stock, the number of
Preferred Stock which will be sufficient to permit the exercise in full of
all outstanding Rights.
The Company covenants and agrees that it will take all such
action as may be necessary to insure that all Preferred Stock delivered upon
exercise of Rights shall, at the time of delivery of the Preferred
Certificates for such shares (subject to payment of the Subscription Price),
be duly and validly authorized and issued fully paid and nonassessable.
12. Escrow of Funds. All Funds received in payment of the
Subscription Price shall be held by the Subscription Agent and invested at
the direction of the Company in short-term certificates of deposit, short-
term obligations of the United States or any state or any agency thereof or
money market mutual funds investing in the foregoing instruments. The
Subscription Account in which such funds will be held will not be insured
by the FDIC. Any interest earned on such funds will be retained by the
Company.
Funds received in payment of the Subscription Price for Excess
Shares subscribed for pursuant to the Oversubscription Privilege will be held
by the Subscription Agent in the Subscription Account and segregated from its
other accounts pending issuance of the Excess Shares. If a Rights Holder
exercising the Oversubscription Privilege is allocated less than all of the
Excess Shares for which that Rights Holder subscribed pursuant to the
Oversubscription Privilege, then the excess funds paid by the Rights Holder as
the Subscription Price for shares not allocated to such Rights Holder shall be
returned by mail, without interest, as soon as practicable after the
Expiration Date and after all prorations contemplated by the terms of the
Rights Offering have been effected. The Subscription Agent shall provide an
accounting to the Company from time to time, as the Company may reasonably
request, regarding the Subscription Account.
13. Duties of Subscription Agent. The Subscription Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the Rights
Holders, by their acceptance thereof, shall be bound:
(a) The Subscription Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such legal counsel shall be full and complete
authorization and protection to the Subscription Agent as to
any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under
this Agreement the Subscription Agent shall deem it
necessary or desirable that any fact or matter be proved or
established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chief Executive Officer, any
Executive Vice President or Secretary of the Company and
delivered to the Subscription Agent; and such certificate
shall be full authorization to the Subscription Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Subscription Agent shall be liable hereunder
only for its own or its own legal counsel's negligence or
willful misconduct.
(d) The Subscription Agent shall not be liable for any
of the statements of fact or recitals contained in this
Agreement, in the Rights Certificates or in the Registration
Statement, or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Subscription Agent and any of its stockholders,
directors, officers, or employees may buy, sell or deal in
any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend
money to or otherwise act as fully and freely as though it
were not Subscription Agent under this Agreement. Nothing
herein contained shall preclude the Subscription Agent from
acting in any other capacity for the Company or for any
other person or entity.
(f) The Subscription Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
authorization and execution hereof by such Subscription
Agent) or in respect of the validity or execution of any
Rights Certificate (except the due authorization thereof by
it in its capacity as Registrar and Transfer Agent); nor
shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it by an act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Stock to be
issued pursuant to this Agreement or any Rights Certificate
or as to whether any Preferred Certificate will, when
issued, be validly authorized and issued fully paid and
nonassessable.
(g) Notwithstanding anything to the contrary contained
in this Agreement, the Subscription Agent shall not be
required to issue any Rights Certificates after or any
Preferred Certificate upon exercise of Rights after the
thirtieth day following the Expiration Date, and the Company
may not extend the Rights Offering or the Expiration Date
for more than ninety (90) days without the written consent
of the Subscription Agent.
14. Reports. The Subscription Agent shall make available to
the Company, upon the Company's request, the following information: (i)
the number of shares of Preferred Stock validly subscribed for; (ii) the
number of shares of Preferred Stock subject to guaranteed exercises; (iii)
the number of shares of Preferred Stock for which defective subscriptions
have been received; and (iv) the amounts of collected and uncollected funds
in the Subscription Account established under this Agreement. As soon as
practicable after the Expiration Date, or upon the request from the Company
from time to time thereafter, the Subscription Agent shall certify in
writing to the Company the cumulative totals through the Expiration Date of
all the information set forth in clauses (i) through (iv) above. Upon
receipt from the Company of written instructions to mail the Preferred
Certificates representing the shares of Preferred Stock subscribed for
pursuant to the Rights, the Subscription Agent will immediately execute and
deliver to the Company two certificates, one in the form of Exhibit B
hereto and one in the form of Exhibit C hereto. The Subscription Agent
shall also maintain and update a record of Rights Holders (including the
number of beneficial owners) who have fully or partially exercised their
Rights and Rights Holders who have not exercised their Rights. The
Subscription Agent shall provide the Company or its designees with such
information compiled by the Subscription Agent pursuant to this paragraph
14 as the Company shall request from time to time.
15. Future Instructions. With respect to notices or
instructions to be provided by the Company hereunder, the Subscription
Agent may rely and act on any written instruction signed by any one or more
of the following authorized officers or employees of the Company: Chief
Executive Officer or any Executive Vice President.
16. Payment of Taxes. The Company covenants and agrees that
it will pay when due and payable all documentary, stamp and other taxes, if
any, which may be payable in respect of the issuance or delivery of any
Rights Certificate or of the Preferred Stock; provided, however, that the
Company shall not be liable for any tax liability arising out of any
transaction which results in, or is deemed to be, an exchange of Rights or
Preferred Stock or a constructive dividend with respect to the Rights or
Preferred Stock and provided further that the Company shall not be required
to pay any tax or other governmental charge which may be payable in respect
of any transfer involved in the transfer or delivery of any Rights
Certificate or the issuance or delivery of Preferred Certificates in a name
other than that of the Recordholder of such Rights Certificate evidencing
the Rights exercised or transferred, and the Subscription Agent shall not
register any such transfer or issue any such Preferred Certificate until
such tax or governmental charge, if required, shall have been paid.
17. Payment of Expenses. The Company will pay the
Subscription Agent compensation for its services under this Agreement in
accordance with Schedule I hereto, and will reimburse the Subscription Agent
for all reasonable and necessary expenses incurred by it in so acting.
18. Indemnification.
(a) The Company covenants and agrees to indemnify and
hold the Subscription Agent harmless against any costs,
expenses (including reasonable fees for legal counsel),
losses or damages which may be paid, incurred or suffered by
or to which the Subscription Agent may become subject,
arising from or out of, directly or indirectly, any claim or
liability resulting from its actions pursuant to this
Agreement other than costs, expenses, losses and damages
incurred or suffered by the Subscription Agent as a result
of, or arising out of, its negligence or willful misconduct
in connection with performance of its duties hereunder.
(b) If the indemnification provided for in this
paragraph 18 is applicable, but for any reason is held to be
unavailable, the Company shall contribute such amount as is
just and equitable to pay, or to reimburse the Subscription
Agent for, the aggregate of any and all losses, liabilities,
costs, damages and expenses, including reasonable legal
counsel fees, actually incurred by the Subscription Agent as
a result of or in connection with, and any amount paid in
settlement of (if such settlement is made in accordance with
paragraph 18(d) hereof), any action, claim or proceeding
arising out of or relating in any way to any actions or
omissions of the Company.
(c) If any action is brought against the Subscription
Agent in respect of which indemnity may be sought against
the Company pursuant to this paragraph 18, the Subscription
Agent shall promptly notify the Company in writing of the
institution of such action and the Company may, at its
option, assume the defense of such action, including the
employment and fees of legal counsel and payment of
expenses. The Subscription Agent shall have the right to
employ its own legal counsel in any such case, but the fees
and expenses of such legal counsel shall be at the expense
of the Subscription Agent unless the employment of such
legal counsel shall have been authorized in writing by the
Company in connection with the defense of such action, the
Company shall not have employed legal counsel to have charge
of the defense of the action or the Subscription Agent shall
have reasonably concluded that there may be defenses
available to it which are different from or additional to
those available to the Company (in which case the Company
shall not have the right to direct the defense of such
action on behalf of the Subscription Agent), in any of which
events the fees and expenses of not more than one additional
firm of attorneys for the Subscription Agent shall be borne
by the Company.
(d) The Company shall not be liable for any settlement
of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment
for the plaintiff, the Company agrees to indemnify the
Subscription Agent from and against any loss or liability by
reason of such settlement or judgment. The Company shall
not, without the prior written consent of the Subscription
Agent, effect any settlement of any pending or threatened
proceeding in respect of which the Subscription Agent is or
could have been a party and indemnity could have been sought
hereunder by the Subscription Agent, unless such settlement
includes an unconditional release of the Subscription Agent
from all liability on claims that are the subject matter of
such proceeding.
(e) The provisions of this paragraph 18 shall survive
any termination of this Agreement.
19. Cumulative Rights. The rights and remedies granted in
this Agreement are cumulative and not exclusive, and are in addition to any
and all other rights and remedies granted and permitted under and pursuant
to law.
20. No Waiver. The failure of any of the signatories hereto
to enforce any provision hereof on any occasion shall not be deemed to be a
waiver of any preceding or succeeding breach of such provision or any other
provision.
21. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the signatories hereto and no amendment,
modification or waiver of any provision herein shall be effective unless in
writing, executed by the party charged therewith.
22. Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with and shall be governed by the
laws of the New York without regard to the conflict of laws principles.
23. Binding Effect. This Agreement shall bind and inure to
the benefit of the parties, their successors and assigns.
24. Assignment and Delegation of Duties. This Agreement may
not be assigned by the parties hereto. This Agreement is in the nature of
a personal service contract and the duties imposed hereby are non-delegable.
25. Paragraph Headings. The paragraph headings herein have
been inserted for convenience of reference only, and shall in no way modify
or restrict any of the terms or provisions hereof.
26. Notices. Any notice or other communication required or
permitted under the provisions of this Agreement shall be in writing, and
shall be given by postage prepaid, registered or certified mail, return
receipt requested, by hand delivery with receipt acknowledged, by telecopy
with receipt confirmed or by the express mail service offered by the United
States Post Office, directed to the Company and to the Subscription Agent
at the addresses set forth below, or to any new address of which any party
hereto shall have informed the other by the giving of notice in the manner
provided herein. Such notice or communication shall be effective upon
delivery or, if shipped by mail, three (3) days after it is mailed within
the continental United States.
27. Termination. This Agreement shall terminate at 5:00 p.m.,
New York time, on the thirtieth day following the Expiration Date. Upon
termination of this Agreement, and provided that all shares of Preferred
Stock issued pursuant to exercised Rights prior to such termination are
issued and delivered by the Company, the Company shall be discharged from
all obligations under this Agreement except for its obligations to the
Subscription Agent under paragraphs 16 and 18, Schedule I and with respect
to the obligation of the Company to provide instruction and direction to
the Subscription Agent as may be provided in this Agreement.
The Company: Laboratory Corporation of America
Holdings
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Date: By: _____________________________
Name:
Title:
The Subscription Agent: American Stock Transfer
& Trust Company
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Date: By: _____________________________
Name:
Title:
EXHIBIT A
CERTIFICATE OF SUBSCRIPTION AGENT FOR RIGHTS TO
SUBSCRIBE FOR % SERIES A CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK OR % SERIES B CONVERTIBLE PAY-IN-KIND
PREFERRED STOCK OF LABORATORY CORPORATION
OF AMERICA HOLDINGS
American Stock Transfer & Trust Company (the "Subscription
Agent") does hereby certify that:
The Subscription Agent has been duly appointed and authorized to act as
Subscription Agent in connection with the issuance of rights (the "Rights") to
purchase either % Series A Convertible Exchangeable Preferred Stock, par
value $0.10 per share (the "Series A Exchangeable Preferred Stock") or %
Series B Convertible Pay-in-Kind Preferred Stock, par value $0.10 per share
(the "Series B PIK Preferred Stock") of Laboratory Corporation of America
Holdings, a Delaware corporation (the "Company").
1. The Subscription Agent has of this date issued, countersigned and
mailed certificates evidencing the right to purchase up to an aggregate of
10,000,000 shares of Series A Exchangeable Preferred Stock and Series B PIK
Preferred Stock, together with an accompanying prospectus and other
materials, in accordance with the obligations of the Subscription Agent set
forth in the Subscription Agency agreement dated __________, 1997 between
the Company and the Subscription Agent.
2. Said certificates were signed by duly authorized officers of the
Company by their facsimile signatures and countersigned on behalf of the
Subscription Agent, as Subscription Agent, by authorized officers of the
Subscription Agent who were at the time of affixing their signatures and
still are duly authorized to countersign such certificates.
Dated:__________, 1997
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:______________________
Authorized Officer
EXHIBIT B
CERTIFICATE OF SUBSCRIPTION AGENT FOR RIGHTS
TO SUBSCRIBE FOR % SERIES A CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK OR % SERIES B CONVERTIBLE PAY-IN-KIND
PREFERRED STOCK OF LABORATORY CORPORATION
OF AMERICA HOLDINGS
American Stock Transfer & Trust Company (the "Subscription
Agent") does hereby certify that:
1. The Subscription Agent has been duly appointed and
authorized to act as Transfer Agent (the "Transfer Agent") and Registrar
(the "Registrar") for Laboratory Corporation of America Holdings, a Delaware
corporation (the "Company"), with respect to the Company's % Series A
Convertible Exchangeable Preferred Stock, par value $0.10 per share (the
"Series A Exchangeable Preferred Stock").
2. As such Transfer Agent and Registrar, it has as of this
date issued and countersigned certificates for Series A Exchangeable
Preferred Stock of the Company as an original issue pursuant to the written
order of the Company, in accordance with the obligations of the
Subscription Agent set forth in the Subscription Agency agreement (the
"Agreement") dated ________, 1997 between the Company and the Subscription
Agent.
3. Said certificates were signed by duly authorized officers
of the Company by their facsimile signatures and countersigned or
authenticated, as the case may be, on behalf of the Subscription Agent, as
Transfer Agent and Registrar, by authorized officers of the Subscription
Agent who were at the time of affixing their signatures and still are duly
authorized to countersign or authenticate such certificates.
4. In its role as Subscription Agent pursuant to the
Agreement, the Subscription Agent has mailed to the parties entitled
thereto, in accordance with the Agreement, the Series A Exchangeable Preferred
Stock certificates described in paragraph 2 above of this Certificate.
Dated:_________, 1997
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:_______________________
Authorized Officer
EXHIBIT C
CERTIFICATE OF SUBSCRIPTION AGENT FOR RIGHTS TO
SUBSCRIBE FOR % SERIES A CONVERTIBLE EXCHANGEABLE
PREFERRED STOCK OR % SERIES B CONVERTIBLE PAY-IN-KIND
PREFERRED STOCK OF LABORATORY CORPORATION
OF AMERICA HOLDINGS
American Stock Transfer & Trust Company (the "Subscription
Agent") does hereby certify that:
1. The Subscription Agent has been duly appointed and
authorized to act as Transfer Agent (the "Transfer Agent") and Registrar
(the "Registrar") for Laboratory Corporation of America Holdings, a Delaware
corporation (the "Company"), with respect to the Company's % Series B
Convertible Pay-in-Kind Preferred Stock, par value $0.10 per share (the
"Series B PIK Preferred Stock").
2. As such Transfer Agent and Registrar, it has as of this
date issued and countersigned certificates for Series B PIK Preferred Stock
of the Company as an original issue pursuant to the written order of the
Company, in accordance with the obligations of the Subscription Agent set
forth in the Subscription Agency agreement (the "Agreement") dated
__________, 1997 between the Company and the Subscription Agent.
3. Said certificates were signed by duly authorized officers
of the Company by their facsimile signatures and countersigned or
authenticated, as the case may be, on behalf of the Subscription Agent, as
Transfer Agent and Registrar, by authorized officers of the Subscription
Agent who were at the time of affixing their signatures and still are duly
authorized to countersign or authenticate such certificates.
4. In its role as Subscription Agent pursuant to this
Agreement, the Subscription Agent has mailed to the parties entitled
thereto, in accordance with the Agreement, the Series B PIK Preferred Stock
certificates described in paragraph 2 above of this Certificate.
Dated:__________, 1997
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:_______________________
Authorized Officer
SCHEDULE I
